Chapter III of Part I of the act provides for a number of situations where copying or use of a work will not be deemed to infringe the copyright, in effect limitations on the rights of copyright holders. The existing
common law defences to copyright infringement, notably
fair dealing and the
public interest defence, are not affected (s. 171), although many of the statutory permitted acts would also qualify under one of the common law defences: the defence of
statutory authority is specifically maintained in section 50. This chapter of the act has been substantially modified, notably by the
Copyright and Related Rights Regulations 2003 No. 2498 transposing the EU
Information Society Directive: the description below is of the act as it received royal assent.
Fair dealing defences The following are also permitted acts (the list is not exhaustive): •
Fair dealing with a work for the purposes of private study or research (s. 29); • Fair dealing with a work with acknowledgement for the purposes of quotation, criticism or review or, unless the work is a photograph, for the purposes of news reporting (s. 30); • Fair dealing with a work for the purposes of caricature, parody or pastiche (s. 30A); • Incidental inclusion of copyright material in another work (s. 31); • Public reading or recital by a single person with acknowledgement (s. 59); • Copying and distribution of copies of the abstracts of scientific and technical articles (s. 60); • Recordings of folk songs for archives (s. 61); • Photographs, graphic works, films or broadcasts of buildings and sculptures in a public place (s. 62) (see
Freedom of panorama); • Copying and distribution of copies of an artistic work for the purpose of advertising its sale (s. 63); • Reconstruction of a building (s. 65) • Rental of sound recordings, films and computer programs under a scheme which provides for reasonable royalty to the copyright holder (s. 66); • Playing of sound recordings for the purposes of a non-commercial club or society (s. 67); (S. 67 was omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010). The impact is that charities and not-for-profit organisations that do not fall within the voluntary exemptions offered by PPL now require a licence from the joint licensing system operated by PPL and
PRS for Music; • Recording for the purposes of time-shifting (s. 70); • Free public showing of broadcasts (s. 72); • Provision of subtitled copies of broadcasts for the handicapped by designated bodies (s. 74); • Recording of broadcasts for archival purposes (s. 75).
Educational use In general, limited copying for educational use (including examination) is permitted so long as it is '
fair dealing' and is performed by the person giving or receiving instruction (s. 32) or by the education establishment in the case of a broadcast (s. 35): however, reprographic copying of published editions is only permitted within the limit of 5% of the work per year (s. 36). Works may be performed in educational establishments without infringing copyright, provided that no members of the public are present (s. 34): the parents of pupils are considered members of the public unless they have some other connection with the establishment there are different things too.(e.g., by being teachers or governors). Further provisions are contained in secondary legislation.
Libraries and archives Librarians may make and supply single copies of an article or of a reasonable proportion of a literary, artistic or musical work to individuals who request them for the purposes of private study or research (ss. 38–40); copying of the entire work is possible if it is unpublished and the author has not prohibited copying (s.–43). They may also make and supply copies to other libraries (s. 41) and make copies of works in their possession where it is not reasonably possible to purchase further copies (s. 42). The detailed conditions for making copies are contained in secondary legislation, currently the
Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989 No. 1212.
Public administration Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purposes of a
Royal Commission or
statutory inquiry (ss. 45, 46). The Crown may make copies of works which are submitted to it for official purposes (s. 48). Material which is open to public inspection or on an official register may be copied under certain conditions: this includes material made open to public inspection by the
European Patent Office and by the
World Intellectual Property Organization under the
Patent Cooperation Treaty, and material held as
public records under the
Public Records Act 1958 c. 51 or similar legislation (s. 49).
Relevant cases •
Test of joint ownership - Problems can occur when there is a need to determine whether a person involved in the creation of a piece of work may have joint ownership. When this is the case, there is a test that can be applied, similar to the one which is used to determine originality. This test is used in order to show that the labour, skill and judgement exercised by the author are unique and are that of which are protected by copyright. • '''
Levy v Rutley [1871]''' - In this case it was stated that there can be no finding of joint authorship in a copyright work in the absence of a common intention to that effect. It is implicit in the concept of 'collaboration' that there must be "joint labouring in the furtherance of a common design". This means that it is necessary for both authors to make a significant contribution and that they must have had a similar plan. The levy judgement was subsequently approved by the case of Beckingham v Hodgens 2003. • '''
Stuart v Barret [1994]''' - The court described the test for joint authorship in a work of music: "What the claimant to joint authorship of a work must establish is that he has made a significant and original contribution to the creation of the work and that he has done so pursuant to a common design." It is not necessary that his contribution to the work is equal in terms of either quantity, quality, or originality to that of his collaborators. Nor, in the case of a song, does it matter that his contribution is to the orchestral arrangement of the song rather than to the song itself." • '''
Godfrey v Lees [1995]''' - The claimant was a classically trained pianist invited by a pop group to reside with them and act as orchestral arranger of a number of their songs. He never became a member of the group. The issue here was whether the claimant was the joint owner of copyright in six musical works for which he had made orchestral arrangements or contributed to their composition. It was held that the claimant had established that he had made a significant and original contribution to the creation of the work and must be regarded as a joint author. But as he had waited 14 years before asserting his rights, he was stopped from revoking the implied license granted to the pop group for the exploitation of the works. • '''
Cala Homes Ltd v Alfred Mcalpine Homes East Ltd [1995] -''' The case concerned the relevance of the joint authorship test in employment relationships. Mr Justice Laddie delivers the judgement in which he says '"to have regard merely to who pushed the pen is too narrow a view of authorship." Therefore, it is wrong to think that the only person who carries out the mechanical act of fixation is the author. • '''
Julia Kogan v Nicholas Martin and others [2019] -''' This is the leading case which sets out the test of joint authorship. The case reviewed s. 10(1) which defines a "work of joint authorship." Section 10(1) states that a work of joint authorship is a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author/author's.From this the court outlined four elements of joint authorship: collaboration, authorship, contribution, and non-distinctiveness of contribution. •
Test of originality • '''
University of London Press v University Tutorial Press [1916''' - This case explains the concept of originality. Here, examiners were hired to create exam scripts for the
University of London. The question arose as to whether certain mathematics exam papers were original literary works. The exam papers just consisted of conventional maths problems in a conventional manner. The court held that originality does not mean that the work must be an expression of individual thought. The simple fact that the authors drew on a body of knowledge common to mathematicians did not compromise originality. The requirement of originality, it was held, does not require that expression be in an original or novel form. It does, however, require that the work not be copied from another work. It must originate from the author. As such, even though these were the same old maths problems every student is familiar with, and even though there was no creative input, the skill, labor, and judgement of the authors was sufficient to make the papers original literary works. Essentially, the criteria are satisfied if the work is not a copy of a preceding work and it is originated from the author, who must have exercised the requisite labor, skill or judgement in producing the work. • '''
Interlego AG v Tyco Industries Inc [1989] "the Lego brick case" -''' This case established that not every minor alteration on an object amounts to a new copyright existence. There has to be some additional element of material alteration sufficient to make the work original. In other words, to say that a new copyright protection existed in what was essentially the same work would result in protection being extended indefinitely through a continuation of minor changes. • '''
Infopaq International A/S v Danske Dagblades Forening [2009] -''' This case determined that extracting 11 words of text from an alternative source amounted to unlawful copying. The Court of Justice of the European Union decided that copying a short sentence/phrase from a literal work might be regarded as substantial copying if those words were the result of the intellectual creation of the author. The case received subsequent approval from The NLA and others v Meltwater Holding BV and others [2011]. • '''
Football Dataco Ltd v Yahoo! UK Ltd and others [2012] -''' This case established that football fixture lists are not protected by copyright if the compilation is not the authors own intellectual creation even if the compilation required significant labor, judgement and skill [at 42]. The Dataco case emphasizes the need for creative choices and decisions to be made in addition to the labor and skill that is required to produce the work in question. •
The Primary Infringement Test for Economic rights •
Designers Guild v Russell Williams [2000] - Designers Guild determined that copyright infringement occurs when a defendant has taken a substantial part of an original work. The courts in making a determination of substantial pay regard to its quality, not whether the two works look alike or the same. An important distinction which means reference must be made to a work's quality rather than quantity. •
Performing rights • '''
Gramophone Company v Stephen Cawardine [1934]''' - The coffee shop, Stephen Carwardine & Co, had been keeping its customers entertained by playing records.
EMI, then called
The Gramophone Company and argued that it was against the law to play the record in public without first receiving the permission of the copyright owners. The judge agreed, establishing this as a legal principle. EMI and
Decca formed
Phonographic Performance Ltd (PPL) to carry out this licensing role and opened the first office in London. The Copyright Act 1956 led to the expansion of PPL's role to also cover the licensing of broadcasters that played recorded music. Further copyright law changes in 1988 strengthened PPL's licensing position. In 1996, performers were given the rights to receive 'equitable remuneration' where recordings of their performances were played in public or broadcast – leading to PPL paying them royalties directly for the first time. In addition, it was stated by Maugham J that, "the arrangement of the recording instruments in the building where the record is to be made, the building itself, the timing to fit the record, the production of the artistic effects, and, perhaps above all, the persons who play the instruments, not forgetting the conductor, combine together to make an artistic record, which is very far from the mere production of a piece of music". •
Test of first ownership of copyright in sound recordings • '''
A&M Records v Video Collection International [1995]''' –
Torvill and Dean wanted to create music to dance to. Their service company, Inside Edge ("IE"), was given the task of doing this. IE engaged a Mr. Pullen who in turn engaged an arranger and a conductor (R). It was common ground that R did the following – commissioned and paid for the musical arrangements, booked and paid for the studio, arranged and paid for the attendance of the 51 musicians necessary to make the recording, engaged and paid for the scoring, a sound engineer, and a fixer and paid for all expenses of the sessions such as meals, taxis, etc. The issue in this case: who was the "author" of the sound recording under s. 9(2) CDPA? By whom were the arrangements necessary for the making of the recording undertaken? Alternatively, was IE the owner in equity under the principles of Massine v De Basil? And if the plaintiffs were not the owners of the copyright, was R stopped from asserting his ownership? In the case, it was held that IE undertook the arrangements through Mr. Pullen. R made the recordings, but Mr. Pullen undertook the arrangements. It was also an implied term in the contract between R and Mr. Pullen that IE would own the copyright. However, had IE not been the copyright owner, R would not have been stopped because he was not aware of his rights. •
Moral rights • '''
Turner Entertainment co. v Huston, CA [1992]''' – This case concerned the colorization of a black and white American film directed by John Huston. After John's death the film was colorized by Turner Entertainment. The heirs of Huston and others sought to prevent the broadcast of the colorized version on French national TV, and were successful. The colorization of the film breached the heirs moral right of integrity under French law. The case would also be actionable under UK law via s. 77–83. == Moral rights ==